alimony Flashcards
What is the purpose of alimony?
The purpose of alimony is to place the supported spouse as close as practical in the same position of support as during the marriage.
What is the duty of a family court regarding alimony claims?
If the claim for alimony is well-founded, a family court has the duty of making an alimony award that is fit, equitable, and just.
in making an award of alimony or seperate support and mainatnce what are the 13 factors
(1)
duration of the marriage w the ages of the parties ;
(2) physical and emotional health of the parties;
3) educational background of the parties;
(4) employment history and earning potential of the parties;
(5) standard of living established during the marriage;
(6) current and reasonably anticipated earnings of the parties;
(7) current and reasonably anticipated expenses of the parties;
(8) marital and nonmarital properties of the parties;
(9) custody of children;
(10) marital misconduct or
fault, even if not used for divorce action
(11) tax consequences; and
(12) prior support obligations;
as well as (13) other factors the court considers
relevant.
Three important factors in awarding periodic alimony are
(1) the duration of the marriage; (2) the overall financial
situation of the parties, especially the ability of the supporting spouse to pay; and (3) whether either spouse was
more at fault than the other.
What is the role of an appellate court in alimony cases?
The appellate court’s role is not to reweigh the factors but to determine if the family court abused its discretion.
what are the two possibilites of method in which the alimony is to be paid
periodic payments or in a lump sum
what are the two possibilites of duration that alimony can be paid
permanent support or as temporary, rehabilitative support
What is the purpose of rehabilitative alimony?
To encourage a dependent spouse to become self-supporting after a divorce.
What does rehabilitative alimony permit former spouses to do?
It permits former spouses to develop their own lives free from obligations to each other.
When should rehabilitative alimony be approved?
Only in exceptional circumstances; There must be evidence demonstrating the self sufficiency of the supported spouse at the expiration of the ordered payments in order for rehabilitative alimony to be granted.
Why is rehabilitative alimony seldom sufficient?
Because it seldom suffices to maintain the level of support the dependent spouse enjoyed as an incident to the marriage.
factors to decide if an award of rehabilitative alimony is appropriate (8)
(1) the duration of the marriage;
(2) the age, health, and education of the supported spouse;
(3) the financial resources of the parties;
(4) the parties’
accustomed standard of living;
(5) the ability of the supporting spouse to meet his needs while meeting those of the
supported spouse;
(6) the time necessary for the supported spouse to acquire job training or skills;
(7) the likelihood
that the supported spouse will successfully complete retraining; and
(8) the supported spouse’s likelihood of
success in the job market.
when can the court not award alimony
No alimony may be awarded a spouse who commits adultery
before the earliest of these two events:
(1) the formal signing of a written property or marital settlement
agreement or
(2) entry of a permanent order of separate maintenance and support or of a permanent order
approving a property or marital settlement agreement between the parties.
what is the purpose of periodic alimony/what circumstances is it ususually given (3)
1.circumstances where the court finds it appropriate to order the payment of
- alimony on an ongoing basis
where it is desirable to make a current
determination and - requirement for the ongoing support of a spouse to be reviewed and revised as
circumstances may dictate in the future.
when does periodic alimony terminate
on the remarriage or continued cohabitation of the
supported spouse or upon the death of either spouse
what is the most standard form of alimony
periodic
six types of alimony
periodic, lump-sum, rehabilitative, reimbursement , separate support and maintenance, other forms that serve as a catch all
when can periodic alimony be modified or terminated
due to changed circumstances when
there is a substantial or material change in circumstances, such as changes in a party’s health or income.
what is lump sum alimony; when does it terminate; when is it used
*Finite total sum to be paid in one installment or periodically
*Terminates only upon death of one spouse
*Exercised only when required by special circumstances – must be supported by compelling reason for its necessity or desirability
what is purpose of lump sum alimony
circumstances where the court finds alimony appropriate but determines
that such an award be of a finite and nonmodifiable nature.
when is lump sum alimony modifiable /terminable
NEVER
what is rehabiltiative alimony; when is it terminated; when is it modified; what is the purpose
- Finite sum to be paid in one installment or periodically
- Terminates on remarried or cohabitation of supported spouse, death of either spouse, or occurrence of specific future event
- Modifiable based on unforeseen events frustrating good faith efforts of support spouse to become self-supporting or ability of supporting spouse to pay
- Purpose to help rehabilitate supported spouse
when is rehabilitaive alimony given
only in special circumstances
what are addtional factors to consider when giving rehabitative alimony
o Time necessary for supported spouse to acquire job training and skills
o Likelihood that supported spouse will complete training
o Likelihood of success in job market
how is reimbursement alimony paid, when is it terminable
paid in a finite sum(ie limited), can be paid in one installment or periodically
terminaible upon remarriage or continued cohabitation of supported spouse, or upon death of either spouse
when is reimbursment alimony not terminable or modifiable
based upon
changed circumstances in the future
purpose of reimbursement alimony?
circumstances where the court finds it necessary and desirable to reimburse the supported spouse from the future earnings of the payor spouse based on circumstances /events that occurred during the marriage
what is the purpose of separate support and maintenance
circumstances where a divorce is not sought, but it is necessary to provide for support of the supported
spouse by way of separate maintenance and support when the parties are living separate and apart.
how is seperate support and maintance to be paid
to be paid periodically
when does separate support and maintenance terminate
upon the continued
cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either
spouse
when is separate maintaince and support terminable and modifiable
based upon changed
circumstances in the future
what is the exception to the alimony factor of martial misconduct or fault
cant use evidence of personal conduct if it happened before the sighing of a written settlement or entry of permeant order
What may the court provide for in an alimony award?
The court may make provision for security for the payment of support, including money, property, and bonds.
What factors may the court consider regarding life insurance in alimony cases?
The court may consider the cost of premiums, insurance plans during marriage, insurability of the payor spouse, the economic condition of the supported spouse upon the payor’s death, and other relevant factors.
What is the purpose of requiring life insurance in alimony cases?
To assure support of a spouse beyond the death of the payor spouse.
What may the court order in an alimony award?
The court may order direct payment to the supported spouse or require payments through the Family Court.
What can the court allocate responsibility for in an alimony award?
The court can allocate responsibility for the service fee in connection with the award.
What may the court require regarding debts and obligations?
The court may require the payment of debts, obligations, and other matters on behalf of the supported spouse.
why does the edu status of a spouse matter for alony
potential income could be impacted by this factor
what does it mean for a court to impute income?
its when the court assigns an income to a party (usually a parent or spouse) who is unemployed or underemployed. This imputed income is then used to calculate child support or spousal support obligations. Essentially, the court determines what a person could be earning, rather than what they are actually earning.
which awards are/are not modifiable
periodic – modifiable based on changed circumstances happening in the future
lump sum – not modifiable
rehabilitative – modifiable based on unforeseen events that frustrate the good faith efforts of supported spouse to become self supporting or the ability of the supporting spouse to pay the alimony
reimbursment - not modifaible based on changed circumstances in the future
when can the issue of alimony be reserved?
when there is a determination that there exists an identifiable set of circumstances that is
likely to generate a need for alimony in the reasonably near future.
when will the issue of alimony not be reserved
If there is no need for alimony at the time of the
trial, no indication of physical or mental illness, foreseeable change in need in the future, or some other extenuating
circumstance,
when do courts begin to second guess awards of alimony
when they serve as a disincentive for the supported spouse to improve their employment potential or provide for their own support
what is the standard award of alimony that courts like to give
permanent periodic support
What can either party do if their financial circumstances change after a divorce judgment?
Either party may apply to the court that rendered the judgment for an order to decrease, increase, or terminate periodic alimony payments.
What must the court provide to both parties before making a decision on periodic alimony adjustments?
The court must give both parties an opportunity to be heard and to introduce relevant evidence.
What factors does the court consider when adjusting periodic alimony payments?
The court considers the changed circumstances and the financial ability of the supporting spouse.
What can the court do regarding the amount of alimony in the original judgment?
The court can decrease, increase, confirm the amount of alimony, or terminate such payments.
what are the factors to consider if retirement is a sufficient ground to warrant a hearing to see if there has been a change of circumstances for alimony?
6 in all
(1) whether retirement was contemplated when alimony was awarded;
(2) the age of the supporting spouse;
(3) the health of the supporting spouse;
(4) whether the retirement is mandatory or voluntary;
(5) whether retirement would result in a decrease in the supporting spouse’s income; and
(6) any other factors the court sees fit.
when is it error to award a certain amount of permanent alimony
when it is in excess of the spouses need
when can alimony be used to penalize the other spouse
never
when can a trial court be found to have abused its discretion when awarding alimony
when they don’t consider all the factors or a lack of analysis on the factor
can there ever be an award of alimony despite the shortness of a marriage
yes! if there are extreme conduct like physcial abuse, alimony would be appropriate
how can a spouses contribution in the development in the other spouses practice or education come into play for alimony
In these situations
reimbursement alimony may be appropriate, regardless of the appropriateness of permanent alimony.
What occurs when one spouse benefits from the other’s support in obtaining a professional degree?
An unfairness has occurred that calls for a remedy.
What is the understanding between spouses regarding professional support?
Future benefits will accrue and inure to both of them.
what does it mean to reserve alimony
a court can address the issue of alimony payments at a later date, allowing them to modify if significant life changes occur, rather than making a final decision on alimony at the time of the divorce decree
who has the discretion to award lump sum alimony
courts; but it should be limited to special circumstances that require it or make it advisable
can a court unconditionally order the transfer of property as alimony
no
what are examples of special circumstances that would warrant lump sum alimony
spouse that had not supported his family for 19 years
spouse that ran through a large inheritance quickly
the supported spouse’s need for the whole amount of the money soon
is alimony calculated to a mathematical certainty
no; its a court of equity
what does it mean to be the supported spouse
the person getting the alimony
how do the factors get weighed
based on the facts of the case
in order to justify termination or modification of alimony, what must the change in circumstance be?
the change in circumstances must be
substantial or material. Additionally, the change must be unanticipated
What is the focus when determining a substantial change for alimony modification?
The focus is on the totality of Wife’s and Husband’s circumstances both at the time of their divorce and at the time of filing for termination or modification.
can you loose your alimony just because youre sleeping w/someone
no
how can alimony be terminated through “continued cohabitation”
the supported spouse resides with another person in a romantic relationship for a
period of ninety or more consecutive days.
how can the court determine that continued cohabitation occurred for purposes of terminating alimony even if they dont live together for 90 consecutive days
if
there is evidence that the supported spouse resides with another person in a romantic relationship for
periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day
requirement.
the party seeking modification has what kind of burden to show unforeseen circumstance
preponderance of the evidence
what considerations must the court look at in the modification context
Many of the same considerations relevant to the initial setting of an alimony award may be applied in the
modification context as well, including the parties’ standard of living during the marriage, each party’s earning
capacity, and the supporting spouse’s ability to continue to support the other spouse.
is retirement always a changed circumstance that would warrant modification/termination
it depends! if the retirment was contemplated then prob not(because the change circumstance must be unforseen)
What should a court consider when a payor spouse seeks to reduce support obligations?
The payor spouse’s earning capacity.
What must a court examine when a payor spouse’s actual income versus earning capacity is at issue?
The payor spouse’s good faith and reasonable explanation for the decreased income.
Can a payor spouse be found to be voluntarily underemployed without bad faith motivation?
Yes, a payor spouse can be found to be voluntarily underemployed even in the absence of a bad faith motivation.
is old age enough to justify reduction or termination of alimony
not on its own; a court should
consider all relevant evidence and determine whether there has been a substantial or material, unanticipated
change in circumstances warranting a reduction in the supporting spouse’s alimony obligation.
does a person’s decsion to postpone applying for soical security equate to voluntary underemployment that would allow the court to impute income
no
What may prompt a family court to consider a party’s earning capacity?
Voluntary decreases in income may prompt a family court to consider a party’s earning capacity instead of actual income.
Does failure to reach earning capacity automatically equate to voluntary underemployment?
No, failure to reach earning capacity, by itself, does not automatically equate to voluntary underemployment.
What must occur for income to be imputed in the context of underemployment?
Income must be imputed only if there is a determination of voluntary underemployment.
what are three important factors in deciding on periodic alimony
(1) the duration of the marriage; (2) the overall financial situation of the parties,
especially the ability of the supporting spouse to pay; and (3) whether either spouse was more at fault than the
other.
when can alimony be secured via life insurance
A showing of special circumstances or a compelling reason; ie major health problems of the payor spouse
